General Conditions for Purchase Order - EMSA

e) ensure that, during communication of personal data and transport ofstorage media, the data cannot be read, copied or erased without authorisation;f) design its organisational structure in such a way that it meets dataprotection requirements.ARTICLE 6 - SUBCONTRACTING6.1. The Contractor shall not subcontract without prior written authorisation fromEMSA nor cause the Contract to be performed in fact by third parties.6.2. Even where EMSA authorises the Contractor to subcontract to third parties, heshall none the less remain bound by his obligations to EMSA under the Contractand shall bear exclusive liability for proper performance of the Contract.6.3. The Contractor shall make sure that the subcontract does not affect rights andguarantees to which EMSA is entitled by virtue of the Contract, notably Article 19.ARTICLE 7 - AMENDMENTSAny amendment to the Contract shall be the subject of a written agreement concludedby the contracting parties before fulfilment of all their contractual obligations. An oralagreement shall not be binding on the contracting parties.ARTICLE 8 - ASSIGNMENT8.1. The Contractor shall not assign the rights and obligations arising from theContract, in whole or in part, without prior written authorisation from EMSA.8.2. In the absence of such authorisation, or in the event of failure to observe theterms thereof, assignment by the Contractor shall not be enforceable against andshall have no effect on EMSA.ARTICLE 9 - USE, DISTRIBUTION AND PUBLICATION OF INFORMATION ABOUTTHE CONTRACT9.1. The Contractor shall authorise EMSA to process, use, distribute and publish, forwhatever purpose, by whatever means and on whatever medium, any datacontained in or relating to the Contract, in particular the identity of theContractor, the subject matter, the duration, and the amount paid. Wherepersonal data is concerned, Article 5 shall apply.9.2. Unless otherwise provided, EMSA shall not be required to distribute or publishdocuments or information supplied in performance of the Contract. If it decidesnot to distribute or publish the documents or information supplied, the Contractormay not have them distributed or published elsewhere without prior writtenauthorisation from EMSA.9.3. Any distribution or publication of information relating to the Contract or use ofoutcome of the implementation of the Contract and provided as such by theContractor shall require prior written authorisation from EMSA and, if sorequested, shall mention that it was produced within a contract with EMSA. Itshall state that the opinions expressed are those of the Contractor only and donot represent EMSA's official position.9.4. The use of information obtained by the Contractor in the course of the Contractfor purposes other than its performance shall be forbidden, unless EMSA hasspecifically given prior written authorisation to the contrary.

ARTICLE 10 – OWNERSHIP OF THE RESULTS – INTELLECTUAL AND INDUSTRIALPROPERTYAny results or rights thereon, including copyright and other intellectual or industrialproperty rights, obtained in performance of the Contract, shall be owned solely by theEMSA, which may use, publish, assign or transfer them as it sees fit, withoutgeographical or other limitation, except where industrial or intellectual property rightsexist prior to the Contract being entered into.ARTICLE 11 - FORCE MAJEURE11.1. Force majeure shall mean any unforeseeable and exceptional situation or eventbeyond the control of the contracting parties which prevents either of them fromperforming any of their obligations under the Contract, was not due to error ornegligence on their part or on the part of a subcontractor, and could not havebeen avoided by the exercise of due diligence. Defects in equipment or materialor delays in making it available, labour disputes, strikes or financial problemscannot be invoked as force majeure unless they stem directly from a relevantcase of force majeure.11.2. Without prejudice to Article 1.8, if either contracting party is faced with forcemajeure, it shall notify the other party without delay by registered letter withacknowledgment of receipt or equivalent, stating the nature, likely duration andforeseeable effects.11.3. Neither contracting party shall be held in breach of its contractual obligations if ithas been prevented from performing them by force majeure. Where theContractor is unable to perform his contractual obligations owing to forcemajeure, he shall have the right to remuneration only for tasks actually executed.11.4. The contracting parties shall take the necessary measures to reduce damage to aminimum.ARTICLE 12 – LIQUIDATED DAMAGESShould the Contractor fail to perform his obligations under the Contract within the timelimits set by the Contract, then, without prejudice to the Contractor's actual or potentialliability incurred in relation to the Contract or to EMSA's right to terminate the Contract,EMSA may decide to impose liquidated damages per calendar day of delay according tothe following formula:0.3 x (V/d)V is the price specified in the purchase order;d is the duration specified in the purchase order or, failing that, the period between thedate of issue and the delivery or performance date specified in the purchase order,expressed in daysThe Contractor may submit arguments against this decision within thirty days ofnotification by registered letter with acknowledgement of receipt or equivalent. In theabsence of reaction on his part or of written withdrawal by EMSA within thirty days ofthe receipt of such arguments, the decision imposing the liquidated damages shallbecome enforceable. These liquidated damages shall not be imposed where there isprovision for interest for late completion. EMSA and the Contractor expresslyacknowledge and agree that any sums payable under this article are in the nature ofliquidated damages and not penalties, and represent a reasonable estimate of faircompensation for the losses that may be reasonably anticipated from such failure toperform obligations.

ARTICLE 13 - SUSPENSION OF THE CONTRACTWithout prejudice to EMSA's right to terminate the Contract, where the Contract issubject to substantial error, irregularity or fraud EMSA may suspend execution of theContract or any part thereof. Suspension shall take effect on the day the Contractorreceives notification by registered letter with acknowledgment of receipt or equivalent,or at a later date where the notification so provides. EMSA shall as soon as possible givenotice to the Contractor to resume the service suspended or inform that it is proceedingwith contract termination. The Contractor shall not be entitled to claim compensation onaccount of suspension of the Contract or of part thereof.ARTICLE 14 - TERMINATION14.1. EMSA may terminate the Contract in the following circumstances:(a) where the Contractor is being wound up, is having his affairs administeredby the courts, has entered into an arrangement with creditors, has suspendedbusiness activities, is the subject of proceedings concerning those matters, or isin any analogous situation arising from a similar procedure provided for innational legislation or regulations;(b) where the Contractor has not fulfilled obligations relating to the paymentof social security contributions or the payment of taxes in accordance with thelegal provisions of the country in which he is established or with those of thecountry applicable to the Contract or those of the country where the Contract isto be performed;(c) where EMSA has evidence or seriously suspects the Contractor or anyrelated entity or person, of professional misconduct;(d) where EMSA has evidence or seriously suspects the Contractor or anyrelated entity or person, of fraud, corruption, involvement in a criminalorganisation or any other illegal activity detrimental to the Union's financialinterests;(e) where EMSA has evidence or seriously suspects the Contractor or anyrelated entity or person, of substantial errors, irregularities or fraud in the awardprocedure or the performance of the Contract;(f) where the Contractor is in breach of his obligations under Article 3;(g) where the Contractor was guilty of misrepresentation in supplying theinformation required by EMSA as a condition of participation in the Contractprocedure or failed to supply this information;(h) where a change in the Contractor’s legal, financial, technical ororganisational situation could, in EMSA’s opinion, have a significant effect on theperformance of the Contract;(i) where execution of the tasks has not actually commenced within thedelivery or performance period set in the purchase order, and the new dateproposed, if any, is considered unacceptable by EMSA;(j) where the Contractor is unable, through his own fault, to obtain anypermit or licence required for performance of the Contract;(k) where the Contractor, after receiving formal notice in writing to comply,specifying the nature of the alleged failure, and after being given the opportunityto remedy the failure within a reasonable period following receipt of the formalnotice, remains in serious breach of his contractual obligations.14.2. In case of force majeure, notified in accordance with Article 11, either contractingparty may terminate the Contract, where performance thereof cannot be ensuredfor a period corresponding to at least to one fifth of the period laid down in thepurchase order.

14.3. Prior to termination under point c), d), e), h) or k), the Contractor shall be giventhe opportunity to submit his observations.Termination shall take effect on the date on which a registered letter withacknowledgment of receipt terminating the Contract is received by theContractor, or on any other date indicated in the letter of termination.14.4. Consequences of terminationIn the event of EMSA terminating the Contract in accordance with this article and withoutprejudice to any other measures provided for in the Contract, the Contractor shall waiveany claim for consequential damages, including any loss of anticipated profits foruncompleted service. On receipt of the letter terminating the Contract, the Contractorshall take all appropriate measures to minimise costs, prevent damage, and cancel orreduce his commitments. He shall draw up the documents required for the tasksexecuted up to the date on which termination takes effect, within a period not exceedingsixty days from that date.EMSA may claim compensation for any damage suffered and recover any sums paid tothe Contractor under the Contract.On termination EMSA may engage any other contractor to execute or complete theservices. EMSA shall be entitled to claim from the Contractor all extra costs incurred indoing so, without prejudice to any other rights or guarantees it has under the Contract.ARTICLE 14A – SUBSTANTIAL ERRORS, IRREGULARITIES AND FRAUDATTRIBUTABLE TO THE CONTRACTORWhere, after the award of the Contract, the award procedure or the performance of theContract prove to have been subject to substantial errors, irregularities or fraud, andwhere such errors, irregularities or fraud are attributable to the Contractor, EMSA mayrefuse to make payments, may recover amounts already paid or may terminate all thecontracts concluded with the Contractor, in proportion to the seriousness of the errors,irregularities of fraud.ARTICLE 15 –INVOICING AND PAYMENTS15.1 Within sixty days of completion of the tasks referred to in the purchase order, theContractor shall submit to EMSA an invoice quoting the reference number of theContract to which it relatesPayments shall be executed only if the Contractor has fulfilled all his contractualobligations by the date on which the invoice is submitted.15.2 Payments are executed in the currency of the contract.Costs of the transfer are borne in the following way:• costs of dispatch charged by the bank of EMSA are borne by EMSA,• cost of receipt charged by the bank of the Contractor are borne by theContractor,• all costs of repeated transfer caused by one of the parties are borne by theparty who caused repetition of the transfer.ARTICLE 16 – GENERAL PROVISIONS CONCERNING PAYMENTS16.1. Payments shall be deemed to have been made on the date on which the EMSA'saccount is debited.

16.2. The payment period stipulated in the purchase order may be suspended by EMSAat any time if it informs the Contractor that his invoice is not admissible, eitherbecause the amount is not due or because the necessary supporting documentshave not been properly produced. EMSA may proceed with further verification,including an on-the-spot check, in order to ascertain, prior to payment, that theinvoice is admissible.EMSA shall notify the Contractor accordingly and set out the reasons for thesuspension by registered letter with acknowledgment of receipt or equivalent.Suspension shall take effect from the date of dispatch of the letter. Theremainder of the period shall begin to run again once the suspension has beenlifted.16.3. In the event of late payment the Contractor shall be entitled to interest, providedthe calculated interest exceeds EUR 200. In case interest does not exceed EUR200, the Contractor may claim interest within two months of receiving thepayment. Interest shall be calculated at the rate applied by the European CentralBank to its most recent main refinancing operations (“the reference rate”) pluseight percentage points (“the margin”). The reference rate in force on the firstday of the month in which the payment is due shall apply. Such interest rate ispublished in the C series of the Official Journal of the European Union. Interestshall be payable for the period elapsing from the calendar day following expiry ofthe time limit for payment up to the day of payment. Suspension of payment byEMSA may not be deemed to constitute late payment.ARTICLE 17 - TAXATION17.1. The Contractor shall have sole responsibility for compliance with the tax lawswhich apply to him. Failure to comply shall make the relevant invoices invalid.17.2. The Contractor recognises that EMSA is, as a rule, exempt from all taxes andduties, including value added tax (VAT), pursuant to the provisions of Articles 3and 4 of the Protocol on the Privileges and Immunities of the European Union.17.3. The Contractor shall accordingly complete the necessary formalities with therelevant authorities to ensure that the goods and services required forperformance of the Contract are exempt from taxes and duties, including VAT.17.4. Invoices presented by the Contractor shall indicate his place of taxation for VATpurposes and shall specify separately the amounts not including VAT and theamounts including VAT.ARTICLE 18 - RECOVERY18.1. If total payments made exceed the amount actually due or if recovery is justifiedin accordance with the terms of the Contract, the Contractor shall reimburse theappropriate amount in euro on receipt of the debit note, in the manner and withinthe time limits set by EMSA.18.2. In the event of failure to pay by the deadline specified in the debit note, the sumdue shall bear interest at the rate indicated in Article 16.3. Interest shall bepayable from the calendar day following the due date up to the calendar day onwhich the debt is repaid in full.

18.3. EMSA may, after informing the Contractor, recover amounts established ascertain, of a fixed amount and due by offsetting, in cases where the Contractoralso has a claim on the EMSA that is certain, of a fixed amount and due.ARTICLE 19 - CHECKS AND AUDITS19.1 Pursuant to Article 142 of the Financial Regulation applicable to the generalbudget of the European Communities, the Court of Auditors shall be empoweredto audit the documents held by the natural or legal persons receiving paymentsfrom the budget of the Union from signature of the Contract up to five years afterpayment of the balance.19.2 EMSA or an outside body of its choice shall have the same rights as the Court ofAuditors for the purpose of checks and audits limited to compliance withcontractual obligations from signature of the Contract up to five years afterpayment of the balance of the last implementation.19.3 In addition, the European Anti-Fraud Office may carry out on-the-spot checks andinspections in accordance with Council Regulation (Euratom, EC) No 2185/96 andParliament and Council Regulation (EC) No 1073/1999 from signature of theContract up to five years after payment of the balance of the last implementation.